Police Brutality
Table of Contents
Figure 1: George Floyd, 48, died on May 25th, 2020 in Minneapolis, Minnesota. The video of him being restrained on the ground by police officers for a prolonged duration went viral and sparked nationwide protests.
Figure 2: The four former officers: Derek Chauvin, J. Alexander Kueng, Thomas Lane, and Tou Thao have been charged with committing (Chauvin) and “aiding and abetting” (Kueng, Lane, Thao) second-degree murder.
The Defunding
On May 25th, 2020 during the onset of a global pandemic, America was shocked when a video of police brutality went viral. The recording depicts a police officer (Derek Chauvin) resting one of his knees on the back of one George Floyd, a black man who can be heard pleading with the officers with phrases like, “I can’t breathe.” The officer allegedly pinned Mr. Floyd in that position for nearly 9 minutes, well after he became unresponsive. The ordeal ended with the ambulance arrived to carry Mr. Floyd away in a stretcher. He was pronounced dead later in the evening.
Officer Chauvin, along with officers J. Alexander Kueng 1, Thomas Lane 1, and Tou Thao 2 have been fired from the force, taken into custody, and been charged with committing (Chauvin) and “aiding and abetting” (Kueng, Lane, Thao) second-degree murder. The video sparked outrage in American streets and lead to mass protests and demonstrations, which continue to the day of writing. The outrage was further fueled by additional cases of deaths of African Americans at the hands of the police which occurred this year 3, 4, 5.
In response to these events, there was mounting pressure from activists for people in governing positions to make policy changes with regards to policing. The most prominent forms of change revolved around some form of nerfing of the police force. The proposals and calls ranged from diverting funds away from police departments to other areas (such as mental health services and social programs) to outright abolition of the police. The Minneapolis city council, a mere 13 days after the death of George Floyd, famously pledged to “dismantle” their police department to a crowd of protesters and activists gathered in a field. Council members and activists pointed to examples of different styles of policing in places like Austin, Texas, where the operators who answer 911 calls inquire whether a caller needs police, fire or mental health services before dispatching a response, and in Eugene, Oregon, where a medic and a crisis worker with mental health training are dispatched to emergency calls.
Figure 3: The Minneapolis city council plegded to “dismantle” the police at a public gathering on June 7th, 2020. Source: The New York Times.
Other examples of cities committing to defunding their police departments are 6:
- Baltimore, MD - the Baltimore City Council approved a $22.4 million budget cut for the police department.
- Portland, OR - The Portland City Council cut $15 million from its police budget earlier this month. $5 million of that would be put toward a new program that sends unarmed first responders to answer homelessness calls.
- Philadelphia, PA - canceled a planned $19 million increase for the police department and shifted $14 million of the police budget elsewhere — including affordable housing.
- Hartford, CT - The city council voted to cut or reallocate $2 million of its police budget.
- Seattle, WA - Every department budget is being trimmed by around 10%.
“We have to reallocate parts of the budget to take things out of the police department that shouldn’t be there … We have to rethink what remains in the police department.”
- Jenny Durkan, Mayor of Seattle, WA
- Other cities where officials are calling for changes, according to Local Progress, include San Francisco, San Diego, Los Angeles, Oakland, Milwaukee, Denver, Durham, Winston-Salem, Chicago, New York City and D.C.
Critics pointed out that most of these cities were financially in the red to begin with, and that the defunding was merely a cost-saving, austerity measure disguised as social justice. But this view did not receive mainstream validation.
Eric Garner Case Study
All of the events of police-related deaths mentioned thus far occurred in the recent past and are sub judice. The publicly available information on these cases is still evolving, and even weeks-old assumptions about them are being overturned. For a proper analysis of Police Brutality, it is helpful to dissect a case from the distant past, which has played out all of its acts, even the ones that follow the deadly encounter with law enforcement. And for this, I have chosen to focus on Matt Taibbi’s investigative journalism surrounding the death of Eric Garner.
Figure 4: Eric Garner, 34, died on July 14th, 2014 while being restrained in a chokehold by the police on Bay Street in Staten Island, NY.
Since the case was analyzed with full hindsight, Taibbi was able to detail the entire spatio-temporal circumstance around Garner’s death. The history, the NYPD, city politics and prosecution, the Garner family struggle, the activism, … all of it. For a full accounting, I’d recommend his book titled I Can’t Breathe: A Killing on Bay Street. In this letter, I shall try and condense the moving parts to their bare essentials.
Figure 5: A graph illustrating the complex web of interacting factions and concepts in every case of police brutality.
Police in Theory
The early history of the police force in the US mimics the rest of the world. Gatherings of humans saw fit to outsource dispute resolution and order enforcement to a dedicated municipal service. In feudal enclaves, the monopoly over state-sanctioned violence was reserved by a kind of “city-guardsmen”, who were a military force directly employed by the local tax-collecting nobility. In lands under tighter imperial control, there was no distinction between the police and the military (think British redcoats) until London had its “City Patrol” start dressing in blue in the early 1800s. In more independent outskirt-towns such as pioneer colonies of the wild west, a local Sheriff would be elected by the people, who had the power to deputize other citizens (or even call upon a “posse”) and declare bounties. For a long time, this was the state of law enforcement in the US.
Already, we can see the seeds of a qualitative difference between “rural” and “urban” police departments. The civilian interactions with a cop walking his beat in his own local neighborhood are going to be markedly different from those with an outsider imbued with a uniform, an authority, and a squad car (and a radio for backup). The police during the prohibition were no different in composition and accountability than the gangs they often fought against. Many were essentially private mercenaries for hire (see: Pinkerton). This changed due to a “Professionalism” movement in the 1940s’ and 50s’, wherein the department hierarchies were formalized, giving us squads, sergeants, lieutenants, and captains. This was followed by a “Consolidation” movement where precincts came under unified administration. This is why there is an NYPD, as opposed to one for every borough of New York. Therefore in large jurisdictions, the police no longer had to live where they worked.
Fundamentally, the idea of the police involves designated citizens in uniforms who are granted certain privileges to violate the rights of other citizens and be protected from any legal liability, as long as the “use of force” can be justified as having been committed in service of the law. The Supreme Court formalized this by introducing the term “Qualified Immunity” 7 in their 1967 decision for Pierson v. Ray 8, enacted during the height of the civil rights movement. Many a police policy and procedure has been shaped by such case-law precedence. Take for example, the 1968 Supreme Court decision on Terry v. Ohio 9, which introduced the term “Reasonable Suspicion”, and set precedent for the police being able to search any person or their vehicle at their discretion in violation of the 4th amendment 10, as long as they can make a reasonable case for suspicion of possession of arms. A citizen detained under reasonable suspicion is not free to leave (think stop-and-frisk, traffic stop, and airport special rooms), but is not under arrest either. A warrant-less arrest, much like a more thorough warrant-less search and seizure, requires a different legal standard called “Probable Cause”, which was established in the 1983 Florida v. Royer decision. The 4th amendment right 10 is still partly preserved when it comes to private residences (see also: Castle Doctrine), which always requires an official search warrant signed by a judicial authority. This was partially eroded in 1995 when the Supreme Court created an exception to prevent destruction of evidence, meaning judges could now issue “No Knock Warrants.”
A lot of these crime bills were in response to a crime wave in the 1980s’ and 90s’, which was partly true (considering incidents of homicide, for instance 11) and partly due to an expanded definition of crime due to the War on Drugs. The fractal unpacking of the War on Drugs would take us everywhere from a Nixonian crackdown on anti-war protesters to the C.I.A.’s role in funding Latin American guerrilla armies using cocaine sales profits, and is beyond the scope of this letter. Suffice it to say that the period required all politicians to present a tough-on-crime image. It saw the passing of several landmark “crime bills,” including one formalizing Civil Asset Forfeiture, which was sponsored in 1983 by one Sen. Joseph R. Biden Jr. Here is Senator Biden himself explaining the bill when taking the Bush administration to task for being soft on crime in 1991:
The 90s’ Bush administration, not to be outdone, created the 1033 Program, which in 1990-91 allowed surplus military equipment, weapons, and vehicles to be transferred to police departments, as long as they helped with federal tasks such as drug enforcement. The Clinton administration expanded its mandate in 1997 to cover counter-terrorism operations.
Case law didn’t just influence top-down federal policy but also precinct-level department policy. The figure below is the typical slide that can be found in police-training powerpoint presentations in most departments 12, 13, and is used to illustrate the concept of the Use-of-Force Continuum. According to Nate Broady (a former prosecutor, former law enforcement officer, Law School Lecturer, and currently a licensed attorney), this phraseology has been adopted by nearly every police precinct in America, and derives from two specific Supreme Court rulings. The 1985 ruling on Tennessee v. Garner established that the police cannot use deadly physical force against a fleeing suspect unless they pose a serious threat of violence to the officer or the community. And the 1989 decision on Graham v. Connor modified the earlier ruling to not just apply to fleeing suspects but to everyone. A particular application of force must be judged from the perspective of a reasonable officer facing the same set of circumstances, without the benefit of hindsight, and based on the totality of the facts that are known to that officer at the time force was used. This is known in legal circles as the Objective Reasonable Standard.
Figure 6: Typical police training slide explaining the Use-of-Force continuum. Source: Nate Broady.
Police officers are shown a schematic such as these 12, 13 and instructed to always stay one level above the civilian they are interacting with. The bottom most level starts with the presence (the mere presence of an officer is considered a use of force) and verbal communication. Should the civilian prove uncooperative, the officer is allowed to issue firm commands and orders. Should they be resisted, the officer can then use physical bodily force. The next levels authorize the use of tasers and ASP batons, and finally, lethal fire arms. For any incident, the officer’s ability to prove compliance with the local departmental use-of-force policy can make the difference between a conviction and an exoneration.
The other great institution besides law that has affected policing is academia. Sociology and criminology have long offered theories which have served as foundations for “new paradigms” and “policy overhauls” instituted by new incoming police commissioners, who are typically paired up with a newly elected mayoralty. A prime example of this is the Broken Windows Theory, a criminological theory that states that visible signs of crime, anti-social behavior, and civil disorder create an urban environment that encourages further crime and disorder, including serious crimes. The theory suggests that policing methods that target minor crimes, such as vandalism, loitering, public drinking, jaywalking and fare evasion, help to create an atmosphere of order and lawfulness, thereby preventing more serious crimes.
The theory was introduced by James Q. Wilson and George L. Kelling in 1982. Well before this time, several precursor experiments had hinted at the effect. Most famously, the Stanford psychologist Philip Zimbardo (ye of the Stanford Prison Experiment fame) arranged for an automobile with no license plates and the hood up to be parked idle in a Bronx neighbourhood and a second automobile, in the same condition, to be set up in Palo Alto, California. The Bronx vehicle was completely vandalized in 24 hours. The Palo Alto vehicle sat untouched for more than a week. But then Zimbardo himself deliberately smashed it with a sledgehammer. This triggered a similar vandalism spree in Palo Alto. Kelling himself drew on his 1963 experience as a social worker at a 64-bed juvenile detention facility in Lino Lakes, Minnesota. He was able to restore complete order and even rehabilitate several inmates by simply establishing a strict adherence to civil behavioral norms.
He made order a priority and worked to normalize the experience of the children, trying to integrate them into the community as quickly as possible rather than keeping them stuck in the institution. They cut down on violence, assaults on staff, and soon had kids going to school, Boy Scouts, and other activities. It seemed a success.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
This was further popularized in the 1990s by New York City police commissioner William Bratton and Mayor Rudy Giuliani, whose proactive policing policies were influenced by the theory. Note that this was still the tough-on-crime, superpredator era, and both local politicians and police commissioners had to come into office with new ideas to clean up and streets and make America safe in all the ways that previous administrations had failed.
Police in Practice
So in theory, a police officer can stop you on the streets, question you, search your person or you vehicle, and arrest you, as long as the officer can prove to a court that they followed the local department policy to the letter when challenged. Your options at the receiving end are limited to cooperating fully and relying on your Habeas Corpus rights to register any protest with a judicial magistrate. Quarreling with the field officer might amount to being uncooperative or resisting arrest, which, even in theory, grants the officer more power over you. Since all of this is operating under English Common Law, which relies heavily on legal precedents, your ultimate fate is entirely dependent on the linguistic interpretations of phrases like “Qualified Immunity”, “Reasonable Suspicion”, and “Probably Cause” by the judge and the jury. You will always be at the mercy of the cultural biases and mores of your time and place.
Figure 7: Typical shift time spent by police officers in three cities. Source: The New York Times.
Police officers are humans much like us. Less than 5% of an officer’s time is spent dealing with violent crime (see figure above). There is a mundane, non-glamorous side to their jobs. They are treated, at least by the upper-classes from well-to-do neighborhoods, as utility workers like garbage men and sewage workers. They are usually called to perform tasks which no one else wants to deal with, such as dealing with drug overdoses among the homeless or confronting “vagrants” who were affecting local businesses. Many-a-beat-cop has parked his patrol car in prominent view beside a highway and spent the day doing paperwork, letting his mere visibility cause the traffic to slow down. You will even see departments assigning easy guard/watch duty to young recruits over older, near-retirement officers in order to decrease their clocked time in their final years on the job, which determines their severance pay. They see themselves as blue-collar workers, and unionize accordingly.
The kind of applicants that police recruitment attracts is influenced heavily by the perception of the police in culture. And unless the recruit sees him/herself advancing in rank and/or joining specialized units (detectives, forensics, SWAT), their career options often include quitting the force after acquiring a few years of experience, and making thrice the salary as a security guard for a gated community or corporation. The 2012 decision of the 2nd U.S. Circuit Court of Appeals (New York) in the Jordan v. City of New London case upheld the city’s cost incurred due to turnover as a valid reason for rejecting applicants with too-high and too-low an IQ. The glamour of policing is further dispelled during training, which is said to involve showing video-recordings of violent interactions between police and civilians. There is usually an equal mix of scenarios working out in favor of the cops and vice versa. The extent to which this is used to teach de-escalation tactics versus filter out recruits who cannot handle the occupational hazard risks, is precinct dependent. The fact that policing needs to occur in a country with a potentially armed population doesn’t help either.
Like prisoners of ourselves, we seem doomed to repeat patterns over and over. Meyerson talked about the Kerner Commission of the late sixties, convened by LBJ to study the causes of race riots. LBJ had hoped to learn that some instigator or group was conspiring to turn otherwise patriotic black Americans to riots and protest. But the commission found just the opposite.
“The Kerner Commission said that the trigger point [of riots] is that police are viewed as an occupying force in black and brown communities,” he said. “Fifty years later or forty-five years later, whatever it is, in Ferguson, reports will say the same thing, that police are viewed as an occupying force. Everything’s changed and nothing has changed.”
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
20th century group-psychology experiments such as the Robbers Cave Experiment and the Stanford Prison Experiment, have helped shed some light on what role innate tribal instincts can play (over and above any ascribable individual responsibility) on the behaviors of uniformed and identifiable police officers on duty (or on trial). And since most urban police do not live where they work, they are further removed from being able to relate to the civilian populations on their beat route. This distance becomes exaggerated when class and race dynamics come in. But the most egregious display of tribal instinct comes in the form of Police Courtesy Cards.
Figure 8: A courtesy card issued by the New York Police Union (Patrolmen’s Benevolence Association) on sale on ebay. Source: Vice media.
These friend-of-a-cop laminated cards are issued by several police unions to their members, who are then free to distribute them to others (typically family). There is no official recognition for their value or role, but unofficially, officers could use their discretion in tuning their biases when dealing with a bearer of one of these. Another phenomena which allows for exercise of police personal discretion is Overcriminalization, wherein several acts are deemed illegal on paper but are culturally permitted, allowing for selective enforcement. The most common example for this is the brown paper bag used to hide bottles of alcohol in public. An unspoken pact recommends that the police look the other way, until they decide otherwise. This is how journalists investigating government corruption can suddenly be charged with illegally downloading music, and have their tax filings receive special scrutiny for unspecified reasons.
The Stop-and-Frisk program instituted in New York in the 90s’ is a textbook case for how a combination of personal prejudices, local precinct beat culture, and top-down policy revision can result in mass injustice. It was a proactive police measure brought on by Commissioner William Bratton, who was appointed by the then new mayor Rudy Giuliani. New York City precincts had already cultivated a culture of patrolling low-income, high-crime neighborhoods at the time, especially using a plainclothes squad called the Street Crime Unit (SCU) created in 1971.
In 1997, it [size of SCU] went from 138 members to 380. The mandate of the SCU was like the mandate for the police department generally: make numbers. It came out in a New York Times story as far back as 1999 that the group was operating on an unofficial quota, which demanded that each officer turn up one illegal gun a month.
“There are guys who are willing to toss anyone who’s walking with his hands in his pockets,” one officer told the Times. “We frisk 20, maybe 30 people a day. Are they all by the book? Of course not; it’s safer and easier to just toss people. And if it’s the 25th of the month and you haven’t got your gun yet? Things can get a little desperate.”
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
Police precincts, like all large bureaucratic organizations, did keep records. Note that they needed to be able to prove in case of an audit, that all procedure had been adhered to. The form that police used to make records of their stops, called a UF-250, evolved over time to make generating a bogus reason for a stop and/or a search as simple as possible. In the 2000s, police checked boxes on a form indicating their reasons for “250” stops. These included:
- Inappropriate attire
- Furtive movement
- Actions indicative of engaging in violent crimes
- Suspicious bulge
When experts studied these forms, they found that the legally meaningless term “furtive movement” was listed as a reason for a stop in about half of all cases.
When community groups and lawyers got together to figure out what to do, they decided to focus on the signature part of Bill Bratton’s revolution, the Stop-and-Frisk campaign.
They did this for a number of reasons. First, the SCU that shot and killed Daillo was responsible for a massive number of stops: 18,023 in 1997 and 27,061 in 1998. A few hundred mostly white men responsible for tens of thousands of stops a year was definitely something to raise an eyebrow at, especially when one factored in the racial breakdown of the people being stopped.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
It is worth noting that it is illegal for the police force to have official quotas for arrests or “stops.” These numbers, however, become metrics for determinations of funding and resource allocation, and at least unofficially, can influence promotions and demotions. The monthly CompStat evaluation meetings between precinct commanders and the commissioner depicted in fiction (see The Wire) are based on real occurrences. There was an emphasis on generating arrests and summonses–what cops called “activity”–that turned the police department into a kind of industrial production scheme. As a textile company produces shirts, pants, and socks, the NYPD produced stops, arrests, and tickets (and with luck, but far less often, guns), mainly using young black and Latino males as the raw materials. The police were also supposed to be deterring crime–preventing it from happening in the first place. The problem was that police were also in charge of reporting crime–that is, keeping account of the problem they were supposed to be eliminating.
Figure 9: A scene from The Wire TV series, showing a CompStat evaluation meeting among police chiefs of various precincts.
Daniels v. City of New York was brought in 1999 by the Center for Constitutional Rights, led by attorney Darius Charney and attorney Jonathan Moore. It targeted Stop-and-Frisk generally and the Street Crime Unit specifically. Four years into the case, Mike Bloomberg ousted Rudy Giuliani from the mayoralty and replaced Commissioner Bratton with his own appointee, Commissioner Ray Kelly. They offered to settle the case and disband the SCU. The city offered a new written policy, regular audits, data turnover, and a public education program. A Judge approved the settlement on December 12, 2003.
But very soon after, when Charney examined the first set of numbers the NYPD delivered, he was dizzy with disbelief. Not only had the city not stopped its discriminatory practices, they’d significantly ramped them up, massively expanding the number of stops.
In 2002, before the deal, the NYPD had stopped 97,296 people. In 2003, that number jumped to 160,851. By 2004, it was 313,523. They by 2007, the city was stopping almost half a million people every year. In each of these years black and Latinos made up well over 80 percent of the stops, despite being less than 50 percent of the population.
…
But Judge Scheindlin had bad news for Charney and his colleagues. The NYPD had fulfilled all of their promises in the settlement. They did the education program. They did the audits. They turned over the data. And they wrote the new policy.
That they didn’t stop mass violating the constitutional rights of 50 percent of the city’s population was, sadly enough, immaterial. The city hadn’t actually promised to change, as far as Judge Scheindlin saw it. They’d merely promised to write a new policy prohibiting the wrong behavior and turn over some numbers.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
So in 2008 they sued again. This time, the city stopped denying that the practice existed. It merely argued that:
- Stop-and-Frisk had reduced crime.
- Black and Brown people were statistically more likely to be criminals.
In 2011 and 2012, blacks and Hispanics represented 87 percent of all people stopped. The city’s answer was that “approximately 83 percent of all known crime suspects and approximately 90 percent of all violent crime suspects were Black and Hispanic.” The city now argued that they had falsified millions of Stop-and-Frisk forms. All those reasons–“furtive movements,” “bulges,” “inappropriate attire,” etc.–were just convenient euphemisms. In truth, there was a single, blanket justification that covered “reasonable suspicion” for at least 80 percent of those searches: they were black or Hispanic residents of high-crime neighborhoods.
Charney had to rely on both statistics, and whistleblowers from within the police precincts to make his case. Police officers, especially those belonging to ethnic minorities, had secretly recorded meetings and phone conversations that showed racial bias and unofficial quotas in policy. A Dominican officer named Adhyl Polanco had recorded a roll call meeting at the 41st precinct, where a Patrolmen’s Benevolent Association representative addressed the troops and explained that the union had been negotiating with the department on the number of summonses and arrests that will be expected from every member.
“I spoke to the CO for about an hour and a half on the activity, twenty-and-one,” the PBA rep says. “Twenty-and-one is what the union is backing up.”
“Twenty-and-one” meant twenty summonses and one arrest. Polanco had captured, on tape, proof of a quota system that the department and its union were complicit in building.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
Hispanic officer Pedro Serrano, who grew up in the very neighborhoods that his unit would be executing 250-stops in, was similarly disgusted by the precinct culture that he was expected to obey. He asked McCormack (deputy inspector of the Fortieth Precinct) to explain what he was supposed to do with regard to his 250s, and recorded the conversation.
“This is about stopping the right people, the right place, the right location,” McCormack seethed.
He told Serrano that in the Mott Haven neighborhood, where “we have the most problems,” his goal should be to stop young black men.
“The problem was what?” McCormack said. “Male blacks. And I told you at roll call, I have no problem telling you this, male blacks, fourteen to twenty, twenty-one. I said this at roll call.”
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
Officer Serrano describes riding around in cars with white cops, listening to them talk about the kids in the projects like they weren’t even human, totally oblivious to the fact that Serrano himself had been one of those kids. Floyd v. City of New York reached a decision in 2013 in favor of its plaintiffs. The city initially appealed the decisions (both the “remedial opinion” and “liability opinion”), but later dropped the appeal in early 2014.
Figure 10: Number of reported NYPD stops by year. Source: ACLU of New York.
Despite some limited record keeping, there is no national data on the Police use of force. The fault partly lies in the independence of state police and the lack of standards in definitions and procedures. The Washington Post has attempted to maintain a national database of fatalities in police encounters starting 2015. The data indicates that (not counting 2020) while the police perform about 10 million arrests every year, the number of deaths at their hands hovers around 1,000-1,200. Of them, less than a hundred are deemed “unarmed.” While just the statistic is insufficient to determine if those shootings were justified (one 2019 datum involved a violent car chase, with weapons recovered from the vehicle), the number, and the proportion of black victims, have decreased over the years. In 2015, officers killed 94 unarmed people, 38 of whom were black men. In 2019, 56 unarmed people were shot and killed by the police. 25 of them were white, while 15 of them were black. About 48 police officers were killed on duty that same year.
Whether or not these statistics indicate a racial bias is actually in dispute among experts. The disagreement centers around whether to normalize the figures to total population, or the difficult-to-measure “encounter rate”, which in itself could have elements of racism, though several degrees removed 14 and much harder to quantify. And researching this has become politically fraught, if this retraction of a 2019 study is any indication. What these statistics miss is the indignity factor. The experts are in consensus that black men are over-represented in non-lethal, violent police encounters irrespective of how that data is normalized. And while there is no correlation between the skin color of the officers and involvement in both lethal and non-lethal encounters, the treatment of victims of police use-of-force show a culture of dehumanization. Many of the stop-and-frisk cases mentioned before involved public strip-searches, and cavity searches.
Figure 11: Mounted officers in Texas led a black arrestee bound with rope down a street in 2019. He has since [[https://abcnews.go.com/US/black-man-led-mounted-police-bound-rope-sues/story?id=73542371][successfully sued] the state.
Eric’s struggle
Eric Garner was born in 1970 to Gwen Carr (then Garner), a hardworking and dedicated woman who put in long hours first for the telephone company, then later for the post office, and ultimately as a subway operator. Eric was barely nineteen when he married a woman several years his senior with two children to feed, who also happened to have a taste for clothes and nice things. The reality of his financial situation hit him like a tidal wave, and after a failed attempt at burglary, he turned to dealing crack cocaine out of necessity. On July 13, 1994, he got arrested for selling crack. Even though it was his first serious offense, and there was no violence in the charge, he was sentenced to eighteen months to three years.
After Eric came home from that first stint in jail, the family moved around for a while. They settled for a time in a tough section of Brownsville, New York. The family spent much of the late 1990s and early 2000s in this spot, and it was a complicated time for them, filled with pain and tragedy, but also some powerful memories of a group of people who stuck together through the toughest of situations. What the Garner kids–four now, from preschoolers to middle schoolers–experienced was a parody of family life. Eric continued to deal drugs to support his family, and was arrested a few more times. Resentments built up over the years. Once in the early 2000s, Eric went away to jail again. While he was gone, another neighborhood drug dealer, a man much younger than Eric, took an interest in his family, started to check in on his kids. By all accounts, there was nothing romantic going on between this man and Esaw Garner (Eric’s wife). To the girls he was too young even to be a father figure and was more like a big brother. But when Eric got back from jail, he wasn’t pleased to see another man involved with his children. This resulted in a serious physical altercation which ended up injuring the younger man. The police came knocking shortly thereafter. He was taken away, and got two years.
Garner’s daughters were furious that he had left them and gone away to jail yet again and began rebelling against him. They refused to visit him on Rikers Island. Garner, in prison, responded in despair and fury, and renounced his kids in a devastating letter. Later, he regretted it and would work for years to repair things with his kids. When he came home from jail after the assault case, they had a family conference, and Garner’s children insisted that he give up drug dealing and commit to being in their lives full-time. Weeping, he promised.
Eric was trying to fly straight. Through a state program called Back to Work, he’d gotten a job with the Parks Department in Staten Island, picking up trash from median strips and parks. But the job only paid about $68 every two weeks, and before long, Garner began to slip. One day in September of that year, he got arrested for dealing one last time, but it was a very different kind of arrest. From a jail cell in Rikers Island on September 12, 2007, where he was awaiting trial, Garner in painstaking scrawl described his last arrest for crack dealing:
- Eric Garner's handwritten note from jail TRIGGER WARNING: Graphic description of strip search
On September 1, 2007, at Approx 7:30 p.m. on the corner of Castalton Ave & heberton Ave Officer William Owens and his team stopped me for reasons of their own. I was ordered to place my hands on the black SUV in which they were riding in. I complied with no problem. Officer William Owens then patted me down by ways of going through my pockets and socks and not finding anything illegal on my person. Officer William Owens then places me IN handcuffs and then performs a cavity search ON me by ways of “Digging his fingers in my rectum in the middle of the street.” Officer William Owens also unzips my shorts and feels under my testicles in the middle of the street, all the while there are people passing back and forth.
I told Officer William Owens to stop and if he wanted to do a strip search I was willing to go to the police station because I had nothing to hide, my request was ignored. I then told Officer William Owens that I was filing charges for him violating my civil rights, I was then hit with drug charges and told by Officer William Owens that “I don’t deserve my city job because I’m a convicted felon on parole.” (I work for the New York City Park Department)
- Eric Garner’s handwritten note from jail (with minor spelling edits)
Under “Injuries,” Garner wrote the following:
The injuries I received were to my manhood in which Officer William Owens violated by ways of digging his fingers in my rectum and pulling my penis out in public so he can feel my testicles for his own personal pleasure. Officer William Owens violated my civil rights.
(with minor spelling edits)
The suit went nowhere and Garner lost his criminal case. Originally accused of selling crack again, Garner had the charge knocked down to possession. He got a year. Eric did not do well in jail. When he came home a year later, he was severely depressed.
From the proverbial thirty thousand feet, modern America has for some time now seemed integrated, especially the big cities. But if you take a closer look, walk from one block to the next, you’ll discover that traditionally white enclaves like Lincoln, Nebraska, are actually more diverse, at the neighborhood level, than places like Chicago, New York, St. Louis, and Baltimore.
On closer inspection, these great cities, not coincidentally all sites of horrific police brutality controversies in recent times, are actually just collections of tense racial archipelagoes where people of different races don’t live near one another or socialize.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
By 2007, Eric and his family had moved to Staten Island. His usual place of “work” was a little stretch of Bay Street in Tompkinsville Park. The park, which used to be nicknamed Needl Park, was on most days home to a collection of dope fiends, drifters, crackheads, and alchoholics. Just a hundred years or so from this crowd, on the water side sits a new fifty-seven-unit condominium complex, part of a major Staten Island renewal plan to invest nearly a billion dollars in a string of high-end residential buildings that would dot the waterfront. The condos looked like great investments but for one thing: the view across the street. When this place was just a straight-up shooting gallery in the early 200s, police hardly ever came by. But now that the park was on the edge of a billion-dollar real estate investment, the police were always around, mixing it up with the park’s denizens over one thing or another. Garner caught a significant share of that extra police attention. He’d arrived in Staten Island years before, an ex-con fresh out of prison on crack charges, and he didn’t have a way to feed his kids. After struggling to find a square job, he broke down and at first considered selling drugs again. But those doors on Bay Street were closed at the time, so he turned to something a little less dangerous and a little more entrepreneurial.
When New York imposed the country’s highest cigarette taxes under Michael Bloomberg, adding almost six dollars per pack to retail prices within the city, smugglers began heading to other states. Virginia and other low-tax states of the South began flooding New York with cheap smokes brought in by canny street arbitrageurs, who undercut New York’s tax laws one illicit trunkful at a time. Eric Garner became one of those smugglers. He had several employees and regularly sent mules on runs to Virginia, where they filled their trunks with wholesaled cartons. They never got caught and brought hundreds of cartons back to Staten Island every few months. The beauty of the scheme from Garner’s point of view was the risk-to-profit ratio. Once you got the cigarettes near the street, the risk of punishment was very small. For mere possession of untaxed cigarettes, the state couldn’t even hit you with a misdemeanor.
Eric Garner may have created a lot of his own problems, but he was also a victim of bad luck and atrocious timing. In the 80s’ and 90s’, when he was beginning to deal drugs, the crack dealer had become public enemy number one. By the time Garner stopped dealing hard drugs, police had shifted tactics, and in moving to cigarettes, Garner was swimming right into the riptide. Now the number one enforcement target on the streets was the minor criminal. The new watchword was “order.” Police had a mandate to shake down anyone who made the streets look disorganized and unruly. People like Garner would become the focus of a law enforcement revolution that by the late 2000s had become intellectual chic across America with a powerfully evocative name: Broken Windows.
People in black and Hispanic neighborhoods of New York and other cities began showing up in lawyers’ offices with horror stories of being knocked down, strip-searched on the street, and busted repeatedly for nonsense charges like obstructing goverment administration, loitering, or obstructing pedestrian traffic. The theory behind the program had evolved–by making people in certain neighborhoods aware that they could be stopped and/or searched at any time, for any reason, it would discourage them from bringing guns or drugs out on the street. It had the effect of making a city full of nonwhite people of varied backgrounds experience a nearly identical sense of dread and uncertainty about when the next stop might come. College students, working professionals, and bloodthirsty gang killers all felt the same thing. For Eric Garner, the threat of being stopped went from an annoyance to a thing that took over his life.
Once Garner built up his operation he began having trouble with the police. He had roughly a half-dozen misdemeanor arrests and convictions in his first few years selling cigarettes, but those didn’t bother him much. He was more upset that police kept stopping him or pulling him over when he was driving, searching him, and then vouchering his smokes and his money. The legal word for this is “forfeiture,” but Garner just called it “taking my shit.” Police take anything they turn up in a search that they think is contraband, i.e., the proceeds of an illegal activity. If they found a wad of cash or a carton of smokes, they might just take it and dare you to come to the station and prove where it came from.
Bloomberg’s cigarette taxes had made a street cottage industry not just for people like Garner but for the police who patrolled them. Garner was the perfect person to help cops make their arrest quotas. Unlike drug dealers, the loosie (individual cigarettes) dealer usually did the whole exchange himself, money for a smoke, hand to hand in the street. Eric was stopped and searched in excess of a hundred times during the few years he operated there. It got to the point that Garner was running into Staten Island police everywhere he went, even when they were off duty. The pressure from the law, on top of the physically exhausting nature of the work, started to take its toll.
After a particular arrest they released him on a thousand dollars bail. According to friends and relatives both, he got fed up and actually called One Police Plaza in Manhattan. They say he spoke to the Internal Affairs Bureau and tried to file a complaint for harassment. His complaint allegedly lead to a visit and interview by Internal Affairs officers. To this day, many members of Garner’s family believe that this IAB episode led to trouble for officers of the 120th Precinct, which increased the level of hostility between Garner and the local cops.
Apart from having to deal with cops, Eric was also a victim of street crime. At least twice, Eric was attacked on the street by young kids trying to rob him. The first time was in 2011. But in 2014, shortly after his March arrest, Garner was robbed again, and this time it hurt. The two incidents–the arrest and bail and the street robbery–happening in such quick succession put Garner in a hole. He’d been beat for large sums of money twice within days, and he had to borrow money from a local storekeeper. He would have been fine soon enough had the police not stopped him again, and arrested him on May 7. The police didn’t even try to charge him with selling cigarettes, just possession, which of course raised the question: If police didn’t see him selling anything, then why were they searching him and finding what was in his pockets in the first place? Even the judge in the case seemed skeptical. He released him without bail, but didn’t go so far as to throw the case out, which is characteristic of how the system often operates. Even when the police get sloppy, the convictions conveyor belt still keeps moving forward.
On the afternoon of July 17, 2014, Eric Garner would break up a fight on Bay Street. Two police officers who arrived on the scene then made a beeline for Garner, who by then had made his way back to his spot. Officers Daniel Pantaleo and Justin Damico would try to arrest him. For selling cigarettes. “To who?” Garner shouted. The two police hovered in and out, alternatively approaching and retreating from Garner. Pantaleo called for backup. They argued some more. Garner kept repeating, over and over, “I did nothing. I did nothing. I did nothing, y’all.” Finally the two police began moving toward him. Backup had arrived. “Hands,” Pantaleo said to Garner, approching quickly. Garner recoiled. “Don’t touch me, please,” he said. Pantaelo reached out to grab him.
Figure 12: Eric Garner, 34, died on July 14th, 2014 while being restrained in a chokehold by the police on Bay Street in Staten Island, NY.
Garner was caught in the crossfire of a thousand narratives that had little or nothing to do with him personally. Everything from a police commissioner’s mania for statistics to the opportunistic avarice of real estate developers had brought him in contact with police that day. So he was fighting one man who rode his back, but also history.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
Aftermath
Eric Garner’s final struggle with the police was caught on a cellphone camera by one Ramsey Orta, who would eventually suffer through his own ordeal with NYPD. At first, Eric’s death riveted the whole country, and seized headlines all over the world. It sent people demonstrating on the streets, and had black and Latino officials howling for indictments. Commissioner Bill Bratton, the father of New York’s Broken Windows strategy seemed to grasp that Garner’s death might be viewed as a referendum on his enforcement strategies. At a presser, he went on to concede that a banned procedure had been used to take down Garner, but was careful to add, “As to whether in any way, shape, or form [it was] a violation of law, that would be a determination of the District Attorney’s criminal investigation.” Bratton tossed the hot potato to the next official in line. To Dan Donovan, the district attorney of the borough of Staten Island. It was in his office that the case began the time-honored process of disappering down the rabbit hole.
Donovan would later boast to the press that he’d devoted more resources to the Garner case than any he had handled since taking over the DA’s job in 2004. He said he’d put eight assistant DAs and as many as ten detectives on the case. He led an hour-long meeting with the Garner family on July 28, during which time he promised mainly to conduct a thorough investigation. He continually stressed that whatever would happen would take a while.
Another recurring theme in these stories is that while cases often begin as unplanned murders and assaults committed in heat-of-the-moment situations by working-class cops, they end as carefully orchestrated cover-ups committed in cold blood, through the more ethereal, polished, institutional racism of politicians, judges, and attorneys.
In other words, one murder might be the fault of a single bad cop. But many murders are almost always the fault of politicians, through the systems they construct to make those murders disappear. As Erica [Eric Garner’s daughter] was about to find out, following the trial after the case leaves the streets is the hardest part of all.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
For decades now, Reverend Al Sharpton’s advocacy in police brutality cases, particularly New York brutality cases, has been a constant. Throughout the 1990s, 2000s, and early 2010s, Sharpton advised families and victims in more than fifty different police brutality cases. His two main lawyers were fame litigators Sanford Rubenstein and the late Johnnie Cochran. The cases that didn’t go to them went either to Benjamin Crump, a highly respected African American lawyer who represented the family of Trayvon Martin, or to Michael Hardy, now the general counsel of Sharpton’s National Action Network. The families represented by Sharpton’s favored lawyers almost always scored major financial settlements. But out of the fifty-two New York cases, only one resulted in a police officer actually going to jail. And this was a rare case because it involved a victim who survived 15. Al Sharpton had been a thorn in the side of Rudy Giuliani, and had supported his personal friend Bill de Blasio’s bid for mayor. So he was mystified when de Blasio, upon being elected, made an alliance with Bill Bratton, the godfather of Stop-and-Frisk. Sharpton was facing increasing criticism from his activist circles for being too close to certain figures within the Democratic party. Just a year prior, famed Princeton University professor Cornel West had attacked Sharpton for being “the bona fide house Negro of the Obama plantation,” ostensibly for not being tougher in calling for federal civil rights charges for vigilante George Zimmerman, the man who killed a seventeen-year-old black boy named Trayvon Martin in Florida.
The Garner case was destined to define de Blasio’s administration. It would test all of his rhetoric about police reform. He scheduled a roundtable on July 31 to discuss police brutality issues. The roundtable was to include religious and community leaders, who would sit down with Bratton and other police officials in what he clearly hoped would be a political love-in. But de Blasio was cooked even before the meeting even started. For one thing, the mayor’s staff seated him flanked on one side by Sharpton and on the other side by Bratton, leaving many line officers in the NYPD with the impression that the hated Sharpton had equal rank with Bratton. In Sharpton’s mind, de Blasio had set him up, and had invited him to this meeting so that he could be photographed sitting next to the police commissioner, endorsing some vague plan to do better and pledging friendship and cooperation that would de-escalate political tensions in the city. Only a part of the disastrous meeting was seen by the press, but it was bad enough. The mayor not only lost his tie to Sharpton but he equally undermined himself with the police, who felt Bratton had been betrayed and set up to take a beating in the press. None of this had anything to do with Garner’s family members or their desire to see Daniel Pantaleo brought to trial. To them, this noisy and irrelevant political infighting threatened to drown out what truly mattered.
Local prosecutors never embraced the argument that prosecuting police represented an inherent conflict. Occasionally, a “progressive” DA might keep the case and try to treat an offense committed by police like it was just another crime. Donovan chose another, more typical path. The medical examiner’s officer released its report on August 1, declaring Garner’s death a homicide. Other instances of police brutality in other parts of America, like the shooting of Mike Brown, was also adding to the pressure. On August 19, 2014, Donovan announced that he wasn’t going to ask for a recusal. He wanted to be the one who tried this case. All felony indictments in New York require that a grand jury meet and vote to indict, a decision called a “true bill.” Because of the sheer quantity of felony-level offenses, that means counties in New York raise grant juries as a matter of course. They consider felony cases in factory-style fashion and will sometimes hear four, five, six cases a day. An oft-quoted saying goes, “A New York prosecutor can get a grand jury to indict a ham sandwich.” But by calling a “special” grand jury, Donovan removed all other burdens from his grand jurors. Instead of hearing a ton of cases, they would hear one. It would take a while. They would hear lots and lots of witnesses.
Which sounded great. Until you thought about it. Donovan made contradictory moves. One the one hand, by not recusing himself, he signaled that he believed he could be objective about this case, that it was no different to him from any other case. On the other hand, by calling a special grand jury, he was saying that there was, in fact, something different about the case, that this was not a normal crime. He began to call witnesses. Subpoenas dropped all over Staten Island. By early September, Bay Street was divided on the wisdom of testifying against cops. And the witnesses who did testify reportedly found the questioning to be far from what they had expected. James knight, the last person apart from police to speak to Garner, says that in earlier interviews he had been asked about what he’d seen, had talked about the chokehold and other things. But once the lights went on for real, he got none of that. “Inside the grand jury room, they didn’t ask any of those questions,” he said. Fred Winship, another witness, reported being prepped for his testimony by uniformed police officers. Because of the secrecy of the grand jury, some of its strange turns can only be seen in the negative space of the testimony that we do know about. For instance: the question of whether or not the prosecution argued that Officer Pantaleo used an illegal chokehold on Eric Garner. Police experts whose qualifications were of varying degrees of dubiousness would surface in the press explaining that what Pantaleo had used was not a chokehold.
On November 24, 2014, a grand jury in Ferguson, Missouri, reached a decision not to indict Officer Daren Wilson. St. Louis County prosecutor Bob McCulloch, Dan Donovan’s counterpart, announced that the grand jury had found “no probable cause” to indict for either first-degree murder or manslaughter. On December 3, 2014, the Garner family was put on alert by Sharpton’s National Action Network that news of some kind was coming. Just after two in the afternoon, the word came in: the grand jury had voted not to indict. The family was outraged. They felt betrayed by Donovan, betrayed by the system, and were especially in no mood to hear a statement issued by Daniel Pantaleo’s lawyers about how the in-hiding officer was feeling “very bad about the death of Mr. Garner.”
Figure 13: Chicago protestors protesting the Staten Island grand jury’s decision, December 4, 2014. Source: Wikimedia Commons.
A Staten Island judge named Stephen Rooney issued an order approving a sealed ex parte request from Dan Donovan to release “certain limited information regarding the conduct of grand jury proceedings.” Because secrecy is so elemental to the grand jury process, information on proceedings is sealed and can only by released under certain criteria, i.e. a “compelling and particularized need” to allow the public acess to information has to be demonstrated. For the sake of “public confidence” in the judicial system, Donovan was allowed to tell the media certain facts about the grand jury:
- The grand jury sat for a total of nine weeks.
- The grand jury heard from a total of fifty witnesses, twenty-two of whom were civilians. The remainder had been police officers, emergency personnel, and doctors.
- Sixty exhibits were admitted into evidence. They included “four videos, records regarding NYPD policies and procedures, photographs of the scene and records pertaining to NYPD training.”
Lawyers across New York began to wonder if Donovan had called witnesses for the prosecution and the defense? Had he turned an indictment hearing into a one-sided case hearing, thereby securing a non-indictment at the hands of a grand jury and absolving himself of any responsibility?
At around the same time, Staten Island’s congressman, a Republican named Michael Grimm, had been hit with a twenty-count indictment on federal corruption charges. Grimm folded in negotiation with the feds, and resigned on January 5th, 2015. Dan Donovan then announced that he would run for Grimm’s seat. What happened in that grand jury room had certainly not hurt his political career.
On the first night after Donovan’s announcement, demonstrations broke out all over the city. Some of these crowds were spontaneous, and some weren’t. A dozen or more organizations, from Black Lives Matter to Copwatch to the Stop Mass Incarceration Network (a front group for the Revolutionary Communist Party, USA), had sprung to action. Many of these groups actively disliked, even detested one another and, behind the scenes, began vying with one another to seize a role as leaders. One group that rose up to that role was Justice League NYC, formed as a task force of the Gathering for Justice (an initiative of legendary singer Harry Belafonte, a major backer of de Blasio’s campaign). Though not lavishly funded, critics took issue with the group’s relationship to celebrities. The Justice League crew involved themselves in all of the early demonstrations, and had a knack for leveraging its celebrity connections into media coups. Through Jay Z, they got several players from the Brooklyn Nets NBA team to wear T-shirts reading “I CAN’T BREATHE” at their home game with the Cavaliers.
On December 10, the Justice Leaguers met with Attorney General Schneiderman as well as members of the city council and afterward held a press conference at City Hall. This solidified their status (in the media, anyway) as the leaders of the ongoing demonstrations. At the meeting with Schneiderman, the group issued a list of ten demands:
- The immediate firing of Daniel Pantaleo.
- The creating of a special prosecutor to investigate police abuse cases.
- The city and state will draft legislation clarifying the rules of engagement on the street.
- The city will create a comprehensive NYPD training program.
- An end to Broken Windows policing.
- An end to the mass criminalization of kids in the New York City school system.
- The United States attorney general, Eric Holder, will expedite an investigation into the death of Eric Garner.
- Passage of the Right to Know Act, requiring officers to identify themselves.
- New York State and all localities to engage in complete transparency regarding profiling and police personnel issues.
- Meeting for the Justice League with the attorney general, mayor, and governor.
It was starting to look like they might be succeeding. Then it all started to go sideways.
The group woke up on December 14 to surprising headlines. “NYPD Cops Attacked During ‘Peaceful’ Protest,” read the New York Post. “Amid Assaults on Officers, New York Police Rethink Their Response to Protests,” was the predictably less-interesting construction of The New York Times. The gist of the stories was that a rogue group of protesters, led apparently by a part-time English professor from Baruch College, had assaulted a group of police officers on the bridge. The professor, a twenty-nine-year-old named Eric Linsker, was caught brandishing a trash can while people were tossing “debris” on cops stationed on the lower level of the bridge. When a lieutenant named Philip Chan tried to arrest Linsker, he fled, effecting his escape as another man in a mask punched Chan in the face, breaking his nose. Linsker, not exactly a master criminal, seems to have dropped his backpack. Police found in it a preposterous kit bag for an academic: three recently purchased hammers, a passport, a MetroCard, a mask, a debit card, and a pill bottle containing marijuana.
With half the city seized with revolutionary fervor over a race killing, in an instant it began to unravel because of a white liberal-arts professor who tried to throw a trash can at police and carried to the scene of the crime ID leading straight to his home. Who brings a passport to a protest?
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
In addition to Linsker and the man in the mask who punched Chan, six other people were involved in the attack, which also targeted another lieutenant named Patrick Sullivan. The five included two women and three men, all engaged in obvious assaults of the police, punching and kicking and throwing the cops to the ground. Police also insisted later on that the mob tried to steal the cops’ portable radios and tear away their jackets. Worse still, there was video of the incident, posted to YouTube, which blew the story into an instant media sensation. It wasn’t long before the cops arrested Linsker. Reporters dug up a poem called “Thwaites” he’d published in August that borrowed its only notable line from Ice Cube:
Fuck the police To rise as you Disappear below current Interpretations of observations Fuck the police
This news came out at the same time as another viral video, this one shot from the window of a home on Thirty-second Street that showed a group of protesters chanting, “What do we want? Dead cops.”
After the bridge incident, the former NYPD captain Joseph Concannon decided to lead pro-police marches. He would go on the become something like the street proxy for the growing feeling of alienation and betrayal within the police ranks. His protests would capture the widespread disgust toward politicians that emanated from the ranks of the police, who felt that they were being pilloried for doing exactly what politicians not so subtly had told them to do. To Concannon, the Garner story had to be viewed in the context of a long series of confrontations with police–and with the CompStat system that pressured cops to fix problems they had no real way of fixing. Concannon tells a story that he heard through police ranks, a version of which was also reported in The New York Times. To wit: a store owner first complained about “conditions,” i.e., sales of cigarettes and drugs, to the commander of the 120th precinct. Concannon described what that kind of call would sound like to a precinct captain.
You want to keep that job right? You don’t want me to embarrass you in front of the entire city, in front of all your peers at One Police Plaza? You want me to put your precinct on the map, with a picture of [Eric] Garner standing in front of a store, intimidating people, saying, ’Hey, Precinct Commander, what are you doing about that?’“
A few days later, Mayor de Blasio sent word to the Justice League activists that he would have a meeting with them. The meeting was largely toothless, as Broken Windows was off the table from the get go. Mayor de Blasio spoke with reporters right after the meeting and essentially tossed the group off a cliff, saying that Justice League was ready to help police find the remaining bridge assailants. He sabotaged the group with the entire protest community. One of the harshest denunciations came from Copwatch, a group dedicated to filming and observing police. Its founder Dennis Flores tweeted out:
We have zero tolerance for people who collaborate with the police against people who want radical and/or social change. #stopsnitching
By blowing them up in public, de Blasio had just ensured that he now had no one to talk to in the protest community. And if he thought that wiping out a ragtag group of protesters would buy him some love from the police unions, he was about to find out otherwise. Later in the afternoon of the next day (December 20, 2014), two police officers named Wenjian Liu and Rafael Ramos were sitting in a squad car when an itinerant loner named Ismaaiyl Brinsley walked up to the passenger-side window, pulled out a gun, and killed them both. Ismaaiyl was twenty eight, and had been spiraling mentally for some time. Earlier in the day, he had gone to the home of an ex-girlfriend in Baltimore and had put a gun to his own head. When she talked him out of killing himself, he shot her. She survived, but by then he was on his way to New York, having posted an ominous message on Instagram:
I’m Putting Wings On Pigs Today. They Take 1 Of Ours…… Let’s Take 2 of Theirs #ShootThePolice #RIPErivGardner [sic] #RIPMikeBrown.
Figure 14: officers Rafael Ramos and Wenjian Liu were shot dead in their squad car by assailant Ismaaiyl Brinsley on December 20, 2014.
Liu was the son of Chinese immigrants and had patriotically joined the force after 9/11. His mother would later tell a story of how he once found a little boy from Queens lost in their neighborhood. “He was hungry, so my son took him to McDonald’s and fed him,” said Xiu Yan Li. “He drove him home, back to Queens.” Ramos was the father of two and so devout that he was studying to be a pastor. His wife, Maritza, and his two sons would go on to spend the next years, like the Garner family, dreading anniversaries of the murder.
As de Blasio trudged to a news conference to address the killings that evening, a number of police officers in attendance turned their backs on him. The hastag #TurnYourBack quickly circulated around the country.
Figure 15: Hundreds of officers turned their back on Mayor de Blasio during the funerals of Rafael Ramos and Wenjian Liu, the two slain officers.
The Liu-Ramos murders essentially ended the nationwide demonstrations. Public opinion, which had tilted decisively in favor of police reform after the Garner grand jury decision, had swung around entirely. The country was now furious about the police deaths, and in yet another ancient pattern that surfaced and would repeat itself over and over again, the distinction between protesters and criminals blurred in the public consciousness.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
On the slower legal side, five different groups of lawyers, each with different relationships to the Garner case, ended up making an effort to try to unseal the Pantaleo grand jury record of proceedings. The five groups included New York’s Legal Aid office, the office of Public Advocate Letitia James, the New York Post, the NAACP, and the New York Civil Liberties Union (NYCLU). Many of them suspected that Donovan had thrown the case and believed that the public had a right to know. Their petitions were all heard on the same day by judge William Garnett on February 5, 2015. The hearings went on for a month and a half. On March 19, Garnett quietly issued a decision shutting down the effort to unseal the grand jury. As expected, he wrapped his arms around the doctrine of compelling and particularized need, using it to strike down all the petitioners’ requests.
Erica, Eric Garner’s daughter, had still been leading weekly marches and meetings on the Staten Island Ferry. But now she filed Freedom of Information requests with the city, seeking information on the background of Daniel Pantaleo. Hers was the second major effort in this direction. On December 18, 2014, a young Legal Aid Society lawyer named Cynthia Conti-Cook had also submitted a Freedom of Information request to the Civilian Complaint Review Board, or CCRB, the city agency in charge of processing and investigating complaints of police abuse. The CCRB was also, at least theoretically, in charge of disciplining officers in noncriminal situations. If Dan Donovan’s grand jury was the first black box in the Garner case, the personnel file of Daniel Pantaleo would be the second. This was no surprise, because the bureaucracy the city had built to deal with bad police behavior was designed to be impenetrable.
In New York, if you get beat up by the police, there are really two places to complain. The most common destination is the CCRB. The organization is supposed to be an independent civilian agency, with no ties to the police, as unthreatening to walk into as the DMV or an emergency room. If you have a problem with police, you’re supposed to call them up and explain: I was walking down the street, police stopped and questioned me, then they knocked me down and broke my finger, etc.
The CCRB takes your info down, then conducts its own investigation. When they’re done, they make a presentation to a three-member panel of CCRB members. After that presentation, the CCRB panel makes one of six recommendations: substantiated, exonerated, unsubstantiated, unfounded, officer(s) unidentified, and miscellaneous.
… if it’s “substantiated,” it moves on. Typically, that means the commencement of a proceeding before the Administrative Prosecution Unit, which is basically a court within the police department. The APU holds trials, but it’s not a court of law. It’s what’s called an administrative law court, which exists entirely within the executive branch, rather than the judicial. In the case of the New York City APU, technically everyone present at a hearing, from prosecutors to judges to defenders, is a member of the police department.
This makes it an odd choice for judging police misbehavior, but the APU hears all substantiated cases of police misconduct. If, at the end of these “trials,” the APU court determines the officer is guilty, it makes a recommendation for discipline. This can be serious as dismissal and as trivial as “instruction” or “command discipline,” which can be just a talking to from your precinct chief, who might not even really care.
But the APU’s ruling isn’t final. All rulings in favor of discipline are sent in the end to the commissioner’s desk. The commissioner, in turn, can unilaterally decide to overrule everyone.
…
The CCRB has thirteen members. Five are chosen by the city council, with one member coming from each borough. Another five are chosen by the mayor, and three are chosen by the police commissioner.
…
Every three-member panel must have one council-appointed member, one mayor-appointed member, and one commissioner-appointed member.
The Freedom of Information Law request sent by the CCRB was denied a week later on December 24. It relied on an exemption to the law, Section 50-a, which held that police records in most all cases were exempt from FOIL. It said “all personnel records used to evaluate performance” of police shall be considered “confidential” and could not be released “without the express written consent” of the officers.
Legal Aid fought back, formally petitioning the court to order the release of a summary of Pantaleo’s file. The main piece of information they were after now was how many complaints against Pantaleo had been substantiated by the CCRB. The judge ordered that the CCRB release the summary on July 17, exactly a yer after Garner’s death. Both the city and Pantaleo appealed, however, and the case was tied up in court for another year and a half. By the summer of 2016, both sides were still months away from making oral arguments in the case.
On March 21, 2017, the site ThinkProgress published an exclusive: The disturbing secret history of the NYPD officer who killed Eric Garner. The site had been contacted by an anonymous source who said they [sic] worked at the CCRB. The source unilaterally broke the court impasse between Legal Aid and New York City. Daniel Pantaleo’s disciplinary records included fourteen allegations, four of which were substantiated. The list showed that Pantaleo had an extensive enough history of complaints that his superiors probably should have intervened long before Eric Garner was killed. ThinkProgress wrote:
The documents indicate that the CCRB pushed for the harshest penalties it has the authority to recommend for all four substantiated allegations … But the NYPD, which is not required to heed the CCRB’s recommendations, imposed the weakest disciplinary action for the vehicular incident: “instruction,” or additional training.
Only about 5 percent of police received eight or more complaints. Pantaleo had fourteen. And only about 2 percent had as many as two substantiated complaints while Pantaleo had four. Pantaleo would be subjected to a disciplinary hearing in 2019, which concluded in June 6 with the recommendation that Pantaleo be fired from the force (he had been drawing a salary from NYPD throughout this period). He was fired on August 19, and as of this writing, is planning to sue in state court for his reinstatement.
Taibbi’s book ends with Erica Garner having gathered a crowd of representatives of a few rival protest organizations at Tompkinsville park on the evening of December 4, 2015. They had just finished a march through the neighborhoods, and word spread that police had massed around the corner. Surrounding the police trucks were a bevy of specially trained riot police in Kevlar, some with machine guns. Tensions between the different groups of demonstrators finally boiled over and they were mostly all standing there, split into two sides, pointing fingers and engaged in a ludicrous argument. While this was going on, Erica quietly wandered around the corner to walk up Victory Boulevard and have a look at the gathered police force.
Eric Garner was murdered by history. The motive was the secret sin of a divided society, a country frozen in time for more than fifty years, stopped one crucial step short of reconciliation and determined to stay there. Now the long line of armor and weaponry arrayed against a single grieving woman appeared as symbols of our desire to separate. Hatred can be organized, but only individuals love.
For a long moment Erica just stood in the middle of the street, staring at the preposterous show of force. The demonstrators were around the corner, still arguing. She was by herself.
- Matt Taibbi, I Can’t Breathe: A Killing on Bay Street
